STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JULIE D TRENTADUE, Employee

RACINE RAILROAD PRODUCTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01607062RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed November 20, 2001
trentju . usd : 105 : 1  MC 605.09

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

There is no question but that the employee's rate of absenteeism was excessive. It remains the case, though, that misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Given the nature of the employee's absences, they cannot be deemed an intentional disregard of the employer's interests. Of her 26 attendance failures, 23 were due to the employee or her son's illness. One was due to a scheduled court appearance, after which the employee did not return to work because she became ill and, subsequently, hospitalized. One was an instance of tardiness by half an hour and the final one was the employee's leaving work early to take her son to lunch. Even the absence precipitating the discharge, in no terms can be deemed an intentional failure by the employee. She has an autoimmune disease, and also suffers from major depression. She was hospitalized by her parents on June 26 and remained so until July 2, at which point she was released, but only for a few hours, after which time she had an adverse reaction to medication and had to be rehospitalized for several additional days.

The same reasoning applies to the employee's failure to have given notice to the employer of her July 3 absence. Recent commission precedent and long-standing Wisconsin Supreme Court precedent stand for the proposition that, if an employer has actual notice that an employee is off work due to injury, strict compliance by the employee with the employer's call-in procedures is not necessary to avoid a finding of misconduct. The commission case is Wilfling v. KRC (Hewitt), Inc., UI Dec. Hearing No. 96401021AP (LIRC August 1, 1996). In that case, the employee was absent from work February 7 - 9, 1996, and did not give notice of his absences on those dates. The employer discharged the employee, pursuant to a standard contract provision governing three days' absence without notice to the employer. The commission held the employee had not committed misconduct, however, considering in part that the employee had spoken with the employer on February 6 and that the employer therefore had actual notice of the employee's absence from work. In that case, the commission also relied upon Milwaukee Transformer Co. v. Industrial Commission, 22 Wis. 2d 502, 126 N.W.2d 6 (1964). In that case, a relative of the employee initially spoke with the employer almost every day regarding the employee's absence (due to an automobile accident), but eventually did not communicate with the employer for more than a month (March 22 - April 27). Despite an employer rule requiring employees to telephone the employer every day of an absence, the commission, circuit court, and Wisconsin Supreme Court all found no misconduct by the employee.

Based upon the above considerations, the commission cannot conclude that the employee's attendance record is misconduct for unemployment insurance purposes. For this reason, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.


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uploaded 2001/11/26